Administrative Law Exam Notes - Lecture notes, lectures 1 - 12 PDF

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ADMINISTRATIVE LAW EXAM NOTES

MADELEINE LEE S00143410

Exam: (50%) Question 1 (30 mark) Long Answer (Application) o Judicial Review o Issues similar to assignment (see slide checklist) Standing Decision Administrative character

Natural justice Irrelevant and relevant considerations Acting at behest of another Bias Jurisdictional error may not be an issues o Assume Cth government has power to legislate for education o Possible advice question o

Question 2 (10 mark) Short Answer (theory) Should be about: Ombudsman Privacy Reasons for decisions in general

Question 3 (10 mark) Short Answer (theory) o See above Q2 FOI and Delegation legislation is not examinable

PURPOSE OF ADMIN LAW Administrative law subjects the executive branch of government to internal and external regulatory mechanisms. These processes serve several important functions; namely, they:  Hold the executive accountable  A form of external control of executive action: o Ministerial supervision; o Parliamentary oversight;  Eg, Senate enquiries (eg, into immigration detention, etc) o Nonadministrative law external control  Eg, auditor-general (ensuring government departments spend money legitimately)  Minimise bureaucratic pathologies

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There is a tendency for governments to exploit their power in order to maintain it or further illegitimate interests Identify systemic cultural elements that influence decisionmaking Ensure democratic control Bureaucrats might think they have a monopoly over the public interest and usurp democratic control by presuming they know better than elected representatives Improve the quality of administration Administrative law serves the bureaucratic self-interest — disclosure is often good for government departments, and can promote change Leads to more efficient operation

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Inform the public Demonstrating the executive’s exercise of power to the public (so they can make an informed vote)

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Legitimise administrative action To imbue their conduct with the appearance of legitimacy by reason of the potential for external invalidation or review

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Protect and promote human rights Administrative law embodies procedures and doctrines which naturally recognise and protect human rights and liberties of citizens

o Requires ‘due process’ to be given o The ability to seek review might in itself be seen as a human right in itself o Administrative decision-making is influenced by administrative law (and hence) human rights principles o Freedom of speech, freedom of information, privacy

Reasons for the ‘new’ administrative law? 

Decline of parliament?

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A rights-culture?

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Perceived inadequacies of the common law: o Costly procedures o No right to decisions o Limited to legality not merits of decision o Complex procedures and remedies

The rule of law according to A V Dicey: 1. 1 Power is not exercised arbitrarily but according to law Constraint is to be contrasted with ‘the exercise by persons in authority of wide, arbitrary, or discretionary powers’ 2. 2 All citizens are equally subject to the law This entails that ‘no man is above the law’ and that all are subject to the same, ‘ordinary law’; this is legal equality; and 3. 3 Judicial remedies are critical to rights Remedies should be granted by courts to specific individuals; this is more effective than implying liberties or security from the Constitution. Perhaps the greatest is irony is that the system Dicey once denounced as a manifestation of unrestricted executive power is now the primary means by which the executive is held to account. Dicey’s conception of the rule of law has significantly shaped the development of administrative law. For example: Administrative bodies perform many and varied functions. This makes them substantially different to courts in many respects (eg, formulating advice or recommendations on matters of public policy, something that a court would never do). Similarly, standing is more relaxed than in law, parties and tribunals often share responsibilities for adducing evidence and presenting arguments, evidentiary rules are significantly altered, formality is reduced, the range of remedies wider, and administrative judgements entail both technical, legal and logical components as well as educative, political and social aspects. It might thus be argued that, owing to these differences, administrative bodies should not be evaluated against the same criteria as courts for compliance with the rule of law. In many ways, administrative bodies are inherently subject to the rule of law: they only have power to adjudicate in accordance with their functions; to go beyond makes their decision liable to be quashed by a court. With the exception of some privative clauses (which are still valid laws that warrant compliance) decisions are reviewable for correctness and propriety. Tribunals must apply rules

uniformly, like a court. An even wider arsenal of remedies are available than those contemplated by Dicey.

However, discretionary may be desirable in some cases. Douglas provides the example of the Migration Act reforms which prevented decision-makers from taking certain factors into account. This increased consistency and reduced discretion, but came at the case of rendering non- justiciable (and on an arbitrary basis) facts and circumstances that were potentially relevant to an applicant’s case. To a large extent, all law is arbitrary — discretion inevitably so. Administrative law increases oversight and provides for additional review processes, so it can only serve to enhance compliance with the content of those laws. As to their substantive merit, that is a matter best left to parliamentary consideration.

Administrative Law and Responsible Government Federal government in Australia is a peculiar blend of the Westminster system and United States federal system of government. As such, it exhibits tension between controlling government by reference to principles of responsible government and by controlling it by separating government power. The state level more closely resembles the Westminster system of government. The local level has considerable power to affect individuals’ lives but is subject to higher levels of government and administrative regulation. Douglas notes that each institution ‘is informed by its own set of values, rules and regulations which have been derived from the chance combination of history and ideology’ (at 26).

Thynne and Goldring note that responsibility is an ‘elusive concept open to a range of meanings’. They identify five distinct usages insofar as it is applied to the executive:  Tasks: the executive is responsible for performing certain tasks or acts o Acts conferring statutory power make administrative bodies responsible for the performance of certain functions  Appropriate: the executive must perform its tasks responsibly; that is, in a responsible or appropriate manner o the executive must be responsive to community values and so responsible to and for the people; it must take responsibility for reforms 

Accountability: the executive must be accountable for the performance of their tasks and are therefore responsible to an institution, person or electorate capable of enforcing the discharge of their responsibilities

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Blame: in a normative sense, the executive or its members may be responsible for some problem or deficiency

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Cause: in a descriptive sense, the executive may be responsible for causing a certain state of affairs to come into existence

Many argue that the executive is become less responsible to Parliament. Two reasons are commonly offered: 1. 1 Party system Party discipline means that Ministers are no longer individually accountable to parliamentary scrutiny but can rather count on the votes of their party; and 

It would be against parties’ best interests to ‘mindlessly defend incompetence’

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Even if party government weakens the responsibility of Ministers to Parliament, it coincides with increased responsiveness (through polling) to the needs of citizens, and may thus contribute to electorally responsible government

2. 2 General complexity Ministers cannot reasonably be expected to maintain control over and supervise the activities of all public servants, so they are decreasingly seen as responsible for the conduct of their Department. Ministerial responsibility is insufficient to eliminate bureaucratic error, though it may provide a disincentive against deliberately introducing such errors Administrative review processes are necessary to enhance correctness Rather than shielding departments behind a Minister, administrative law enhances individual responsibility in government by subjecting each decision to review procedures, and consequently each decision-maker to public (and judicial) scrutiny

Administrative Law and the Separation of Powers According to the separation of powers, institutional arrangements are made designed produce independence of each branch of government. The objective is to reduce the power exercisable by any single branch, preventing the domination of other bodies. In this way, each branch imposes checks and balances on the others.  Separation is powers is impossible to reconcile with responsible government (overlap in

personnel between executive and Parliament for Ministerial accountability);  Assumptions about the divisibility of power are questionable (many similarities between administrative and judicial adjudication, and between administrative and legislative formulations; the values and logical modes of reasoning are also much the same);  The mistrust of government power implicit in the separation of powers is ad odds with the assumption that each branch will respect the rights of the others (though perhaps this enhances to checks and balances their separation provides). Implications for administrative law:  Tribunals cannot exercise judicial power at the Commonwealth level;  Tribunal members, if judges, must have administrative power conferred upon them in a personal capacity;  Tribunals cannot make final and determinative decisions about particular points of law;  Except in the case of administrative tribunals, who have the power of the original decisionmaker, their orders are nor enforceable (Grollo);  Tribunals must defer matters of policy to the executive (Drake per Brennan J);  Tribunals must defer legislative amendment of the law to the Parliament (as must courts);  Courts defer fact finding to tribunals;

 Tribunals must independently assess government policy (Drake);  A state government could probably not confer a general merits review jurisdiction on a state court exercising federal jurisdiction (Kable v DPP); “judicial review”: means by which courts determine whether or not administrative bodies/officials have properly respected the boundaries of the powers and functions formally assigned to them.

2.1 The Nature of Judicial Review What is JR?

 JR comprises the remedies developed by courts to control public officials in the exercise of their powers Constitution and legality v merits distinction:  The doctrine of separation of powers, expressly enshrined in respect of judicial power at the federal level in Ch III of the Constitution, is the principal legitimating factor for the role of courts in JR – it serves to both define and limit their role in reviewing the exercise of official power – summed up in Hamblin v Duffy:

o JR by the court does not enable it to substitute its own decision for that of the person / body who is challenged. The question for the court generally is whether the action is lawful in the sense that it is within the power conferred on the relevant Minister, official or stat body; or that the prescribed procedures have been followed; or that the general rules of law, including adherence to the principles of natural justice, have been observed.  To enliven the court’s jurisdiction in JR, there must be an error of law in the decision under JR (MIEA v Wu Shan Liang)  Fundamental difference between JR and merits review eg. AAT stands in the shows of the original decision-maker with the capacity to substitute a different decision

What kinds of decisions / conduct are judicially reviewable? 

Intro: JR is confined to situations where a government body or official is exercising public powers or duties, eg. makes a decision in the exercise of a statutory power o JR is not available to enforce rights existing purely under private law (eg. rights of one party against another which arise from the terms of a contract mutually agreed to – need to pursue civil remedy)

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Statutory powers: most of the actions/decisions of public bodies and officials consist of the exercise of a statutory decision-making power o R v Toohey: the HC made it reasonably clear that the old rule as to vice-regal officials no longer applied re statutory powers; courts now willing to review discretionary decisions of the Crown

o All statutory powers must be exercised according to law; the status of the repository power is largely irrelevant (Toohey) o NB. Decisions made in the exercise of stat powers by the Gov-Gen are excluded from review under the ADJR Act. o P M61/2010 v Cth: Gov thought its assessment process was non-statutory and unreviewable; the court found it was statutory and hence subject to JR

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Non-statutory prerogative powers: power which has no statutory origin; historically courts were reluctant to JR exercises of prerogative power, however this is no longer the case ( o Today, whether courts will review the exercise of prerogative power depends not on the classification of the source of the power (though still relevant to reviewability), or the status of the decision maker, but on the subject matter or nature of the power exercised (Ex parte Lain; Civil Services Union (CSU)). There are two relevant issues: 1. Whether the decision itself is justiciable regarding the 1st test by Lord Diplock in CSU and accepted in Aus (Peko-Wallsend; Century Metals), that the decision must affect rights or obligations enforceable in private law (CSU; Peko-Wallsend) 

Cabinet decisions that might be justiciable: where Cabinet is called upon to make decisions involving justice to a particular individual (O’Shea) o However, Cabinet decisions involving political, social and economic concerns are generally unreviewable (O’Shea)

2. Whether there are special features of the decision which make JR inappropriate (Peko-Wallsend)

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Politics: Features generally related to the political nature of the decision, eg. where it involves complex policy questions and not simply matters affecting private interests

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Decision of the AG: off limits (Toohey)

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Exec Gov’s discretion to enter or modify treaties: off limits (Blackburn reaffirmed in JH Raynor and Ex parte Rees Mogg)

Public law component: Conventionally, decisions made by private bodies are not amenable to JR, however recent gov corporatisation, deregulation and outsourcing raise new difficulties eg. o GBEs: incorporated under Corporations Act; generally accountable in a broad sense to parliament through the shareholding Minister, but are not usually subject to any direct control from gov re their day to day activities 

Application of JR is uncertain

o Outsourcing: the delivery of gov services to the private sector o Self-regulation: where govs forgo direct statutory schemes of regulation and allow a particular industry or business etc to regulate itself 

Datafin: a body established by an industry as its self-regulatory mechanism was amenable to JR at the best of a person aggrieved by its decision even though the Panel was not established by gov, was not attached to the exec and was not exercising statutory prerogative (or even contractual powers), but because 

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a body should be subject to JR if it exercises public law functions or where its actions have public law consequences (Datafin)

Neat: held that the body’s (created by statute, but incorporated) power derived essentially from its existence as an inc company so its actions were not amenable to JR – but specifically said the conclusions arrived at not to be taken as implying any response to wider issues

3 ELEMENTS TO WHICH THE ADJR APPLIES

1. “a decision to which this Act applies” 

Defined as (s 3 ADJRA; s 4 JRA): “a decision of an administrative character made / proposed / required: a) Under an enactment [different in JRA] other than: a) A decision by the G-G [not included in JRA]; or

Elements:  Decision or conduct;  of administrative character;  under an enactment

b) A decision included in Sch 1” What is a “decision”?  Inclusive definitions (s 3(2) ADJRA; s 5 JRA): Making a decision includes: (a) making, suspending, revoking or refusing to make an order, award or determination; (b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission; (c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument; (d) imposing a condition or restriction; (e) making a declaration, demand or requirement; (f) retaining, or refusing to deliver up, an article; or (g) doing or refusing to do any other act or thing; and a reference to a failure to make a decision shall be construed accordingly.

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Does “decision” include interim or preliminary decisions? Initially, only included ultimate or operative determinations (Evans v Friemann; Riordan), but this approach was disproved by the Federal Court in Lamb v Moss, but resolved in ABT v Bond which returned to the narrow interpretation. o SO: A decision will only be reviewable if it is final / operative, but, if the statute provides for the making of a finding, so that an intermediate decision might be described as a decision under an enactment, it will be reviewable (ABT v Bond)

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A report or recommendation may constitute a decision: where provision is made by enactment for the “making of a report… before a decision is made”, the making of such is a decision (s 3(3) ADJRA; s 6 JRA), provided the statute (or another law) provides for the making of the (final) decision. o Will exist only where the enactment also expressly provides that the report is a condition precedent to the making of the final decision (Ross v Costigan), although it is unclear whether this requirement applies to Qld (Noosa Shire Council; St George v Wyvill – no ref made

to requirement, although probably satisfied in these cases anyway)

2. “conduct engaged in for the purpose of making a decision” (s 6 ADJRA; ss 21 JRA) 

Inclusive definition (s 3(5) ADJRA; s 8 JRA) -- includes the taking of evidence or the holding of an inquiry or investigation o Failure to take evidence, failure to make investigations was JR (Courtney v Peters)

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“conduct” concerns the procedural, rather than substantive, aspects of reaching a decision (not interim steps) (ABT v Bond)

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There is no need for the person engaged in the conduct to be the same person who makes the decision (Chan v MIEA cf Gourgand v Lawton); this is specifically provided for in the JRA (s 21)

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After the decision is made, the conduct is not reviewable (NSW ALC v ATSIC)

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Parts of an investigation which have an effect and are not merely a step in the process are JR (Salerno v National Crime Authority)

3. “of an administrative character” [decision must be…] 

Not expressly defined, essentially de...